Marc Nadon ruling makes you wonder if the government is listening to its lawyers

Justice Marc Nadon is pictured Oct. 2, 2013 in Ottawa.

Photograph by: The Canadian Press files
, Postmedia News

There was a slapstick quality to the Supreme Court’s rejection Friday of Stephen Harper’s nominee for the Supreme Court of Canada.

Other prime ministers have faced difficult decisions when the stakes were higher, but none have ended up looking, as this prime minister does today, like a man who has just stepped on a rake.

This looks to be a preventable embarrassment, and, like a number of other recent legal decisions, it raises questions about whether the government is listening to its lawyers.

In a 6-1 ruling, the court told the prime minister that Marc Nadon, his nominee for the top court, is not eligible to sit thereon.

The ruling is the topper most of a growing pile of cases where judges have told the prime minister that he can’t do things he wants to do.

The federal Justice Department — with an annual budget of $662 million and a staff of 4,588 — is the largest law firm in Canada, but it is either not giving good advice to the government or the government is not listening to the advice it is getting.

That may be because the Tories have promoted people who will give them the kind of advice they want, or more specifically, not give them the kind of advice they don’t want.

It is hard to know, because legal advice to the government is covered by solicitor-client privilege, and it’s not the kind of thing governments tell the truth about.

“We ought to have known that this was dumb because our lawyers advised us against it,” is something no government will ever say.

Here’s what Stephen Lecce, spokesman for the prime minister, said Friday: “We are genuinely surprised by today’s decision. Prior to Justice Nadon’s appointment, the Department of Justice received legal advice from a former Supreme Court justice, which was reviewed and supported by another former Supreme Court justice as well as a leading constitutional scholar. None of them saw any merit in the position taken by the Court.”

We don’t know, and likely never shall, what the government’s own lawyers advised, but they may have warned of troubles, because there must have been a reason for the government to commission a legal opinion from former Supreme Court Justice Ian Binnie.

The Supreme Court Act states that “at least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”

That was negotiated with some difficulty in 1875. Quebec was nervous about letting English judges muck around with Quebec’s separate legal system, so the law set aside seats for Quebec lawyers.

Nadon was once a Quebec lawyer, but he has been sitting on federal courts since 1994. Binnie saw no problem appointing a federal judge who had been a Quebec lawyer.

Until now, Harper’s nominations to the top court appear to have been selected for their legal expertise, not politics.

Nadon, though, seems to have come to the government’s attention when he sided with the government in a split decision concerning terrorist/child soldier Omar Khadr, a special interest of Howard Anglin, the prime minister’s senior legal affairs adviser.

After Nadon was nominated, though, Toronto lawyer Rocco Galati challenged the appointment. Quebec joined in and the government referred the question to the Supreme Court. It also quietly amended the Supreme Court Act, sneaking a couple paragraphs into a budget implementation bill.

On Friday, the court ruled that “a current judge of the Federal Court of Appeal is not eligible for appointment.”

Sorry, prime minister. No Nadon.

How will the government react? Harper has had his will repeatedly thwarted by the courts, and he doesn’t seem to react positively to thwarting.

His government has fired or denounced a number of watchdogs, the better to keep the rest of them in line.

He can’t fire judges, though, and the bench has emerged as the biggest challenge to his authority.

On Thursday, the Supreme Court ruled that a 2011 tough-on-crime parole eligibility law is unconstitutional. Courts have overturned mandatory minimums for gun crimes, rejected a government attempt to shut down a safe injection facility and thrown out prostitution laws. They seem likely to reject the government’s Senate reform plans as unconstitutional, and may open the door to assisted suicide.

Some of these rulings are a delayed reaction to a legislative agenda that appears to be based on values (and populist political appeal) rather than the best evidence, or the likelihood that a given law can withstand a constitutional challenge.

Former justice department lawyer Edgar Schmidt launched a lawsuit last January, claiming that the government was preventing its senior legal servants from properly applying constitutional checks to its laws.

If Schmidt is right, the government is wasting a lot of time and money pushing ahead with laws it ought to know the courts will strike down.

If that’s the case, then, like a man who leaves a rake lying around where he might step on it, Harper has nobody to blame but himself.

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